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Balkrishnadas Venkatidas Shetaji Vs. Malakajappa Irappa Jolad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 306 of 1930
Judge
Reported inAIR1933Bom369; (1933)35BOMLR761
AppellantBalkrishnadas Venkatidas Shetaji
RespondentMalakajappa Irappa Jolad
DispositionAppeal dismissed
Excerpt:
.....has no jurisdiction to interfere with an order passed by the collector under schedule iii of the civil procedure code, 1908, in respect of decrees transferred to him for execution under section 68 of the code. - - it is no doubt true that there is a rule made by the allahabad high court which clearly provides that a civil court has no power to interfere with the procedure of a collector in the execution of a decree which has been transferred to him under section 68. there is no corresponding rule framed by this court to that effect, still the question remains whether a civil court has power to interfere with the order of the collector, who, according to section 71, is deemed to be acting judicially. 787 it was held that the civil court, and not the collector, had jurisdiction to..........been transferred to a collector for execution under the provisions of section 68 of the code of civil procedure, it is not competent to the high court to interfere with the orders passed by him even though they may be obviously not warranted by the provisions of schedule iii, paragraph 1, of the code. it is no doubt true that there is a rule made by the allahabad high court which clearly provides that a civil court has no power to interfere with the procedure of a collector in the execution of a decree which has been transferred to him under section 68. there is no corresponding rule framed by this court to that effect, still the question remains whether a civil court has power to interfere with the order of the collector, who, according to section 71, is deemed to be acting.....
Judgment:

Patkar, J.

1. In this ease a decree was obtained on December 15, 1917, for Rs. 11,626-7-7 to be paid by instalments of Rs. 800 each. In July 1927, a darkhast was given to recover the 7th and the 8th instalments, amounting to Rs. 1,600 as principal and Rs. 173 as interest. The Subordinate Judge sent the decree to the Collector for execution. In May 1928 the Collector ordered the land to be leased to Melappa Andaneppa for twelve years on a yearly rent of Rs. 500 and the rent-note was passed in the following year. In the lower Court an application was made to set aside the lease. The learned Subordinate Judge held that the action of the Collector was intra vires.

2. It appears to us that under Schedule III, paragraph 1, Clause (b), the Collector should have raised the amount of the decree by letting in perpetuity, or for a term, on payment of a premium, and also under paragraph 7, Clause (b) (i), by letting in perpetuity, or for a term, on payment of a premium, the whole or any part of the said property. The Collector, therefore, ought to have let the land on a premium to raise the amount of the decree.

3. It is contended on behalf of the appellant that the Collector by fixing the amount of rent at Rs. 500 and ordering the rent to be paid to the decree-holder has varied the original decree which had made the amount payable by instalments of Rs. 800. It is contended on behalf of the respondents that the civil Court has no jurisdiction to set aside the order passed by the Collector in execution of the decree under Schedule III. The contention is supported by the decision in Krishna Das v. Ram Gopal Singh I.L.R. (1928) All. 827 where it was held that when a decree has been transferred to a Collector for execution under the provisions of Section 68 of the Code of Civil Procedure, it is not competent to the High Court to interfere with the orders passed by him even though they may be obviously not warranted by the provisions of Schedule III, paragraph 1, of the Code. It is no doubt true that there is a rule made by the Allahabad High Court which clearly provides that a civil Court has no power to interfere with the procedure of a Collector in the execution of a decree which has been transferred to him under Section 68. There is no corresponding rule framed by this Court to that effect, still the question remains whether a civil Court has power to interfere with the order of the Collector, who, according to Section 71, is deemed to be acting judicially.

4. It has been held in Bhagwan Das Marwari v. Suraj Prasad Singh I.L.R. (1924) All. 217 that the Collector executing a decree is not a Court. Section 70, Sub-section (1), Clause (c), invests the Local Government with the power of making rules for providing appeals against the orders of the Collector in executing a decree transferred to him under Section 68. According to the decision in Mancherji v. Thakurdas (1905) 7 Bom. L.R. 682 an appeal would lie to the superiors of the revenue officer, who has passed an order in execution under Schedule III.

5. In Bhurchand Hansraj v. Vira Champa I.L.R. (1912) Bom. 32 14 Bom. L.R. 787 it was held that the civil Court, and not the Collector, had jurisdiction to determine the question whether the decree has been satisfied or not, but so far as the machinery necessary for the satisfaction of the decree is concerned, the Collector is the sole authority and the civil Court cannot interfere with the discretion of the Collector.

6. The case of Timmanna v. Govind : (1926)28BOMLR523 refers to the power of a civil Court to interfere with the order passed by the Collector in execution of a partition decree sent to him for execution under Section 54 of the Civil Procedure Code. The decree in the present case is sent under Section 68 of the Civil Procedure Code, and Sub-section (2) of Section 70 prevents the civil Court or any Court in exercise of any appellate or revisional jurisdiction from passing any order which is within the jurisdiction of the Collector to pass under Sub-section (i) of Section 70. In these circumstances it appears that the civil Court would have no jurisdiction to interfere with the order passed by the Collector under Schedule III of the Civil Procedure Code in respect of decrees transferred to the Collector for execution under Section 68 of the Civil Procedure Code. The appeal must, therefore, be dismissed with costs.

Barlee, J.

7. I am of the same opinion. Under the guise of an appeal against the order of the Subordinate Judge made on an application in connection with the execution of a decree of his Court, we find an application for revision of an order made by a Collector purporting to act under the powers given him by Section 69 and Schedule III of the Civil Procedure Code, on the ground that his order was ultra vires. I agree with my learned brother that we have no jurisdiction to revise the Collector's order. Section 115 empowers us to revise orders made by any Court subordinate to this High Court, but nowhere in the Civil Procedure Code is it enacted that a Collector is a Court and we can infer from Sections 70 and 71 that the legislature did not intend that he should be a Court. Had it been the intention that he should be a civil Court, the legislature would certainly not have provided that appeals should lie from his decisions to the revenue authorities, and it would have been unnecessary to provide in Section 71 that he and his subordinates shall be deemed to be acting judicially. On this point reference may be made to the decision of Mukerji J. in Bhagwan Das Marwari v. Suraj Prasad Singh I.L.R. (1927) All. 217 where the learned Judge says (p. 223):-

The Collector is not a court executing the decree. He is nowhere mentioned as a Court, and the Legislature therefore found it necessary to say specifically that when a Collector exercises his jurisdiction in the matter of the execution of decrees, he should be deemed to be acting judicially.

8. I agree then that the appeal must be dismissed.


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